IN THE COURT OF APPEALS OF IOWA
No. 24-0406 Filed October 29, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
DANIEL ANTHONY LANG, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, John Telleen, Judge.
A criminal defendant appeals his conviction for sexual abuse in the second
degree, and the State asks this court to overrule State v. Smith, 508 N.W.2d 101
(Iowa Ct. App. 1993). AFFIRMED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered en banc without oral argument. Telleen, S.J., takes no part. 2
BULLER, Judge.
In this appeal by Daniel Lang, we confront a ghost from our court’s past—
State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993). There, a divided panel of
our court vacated a jury verdict and reversed Smith’s convictions for sexually
abusing three children based on the panel majority’s view of the child victims’
credibility. Since then, Smith has been routinely criticized by our court and the
supreme court; it has never been followed; and its specter haunts our case law,
perpetuating myths or false beliefs about the dynamics and law surrounding sexual
abuse. Despite this, Lang invokes Smith in a bid for us to once again invade the
province of the factfinder and vacate the guilty verdict resulting from his bench trial.
We take this opportunity to overrule Smith and exorcise the decision from our
precedent. Lang’s convictions were supported by substantial evidence and
multiple credibility findings, so we must affirm.
I. Background Facts and Proceedings
Z.S.’s mom started dating and moved in with Lang shortly after Z.S. was
born. Lang is not Z.S.’s biological father, but he acted as a self-described “father
figure” to her throughout her childhood during his on-again-off-again relationship
with her mom. Z.S.’s mom and Lang later had their own child, who was raised in
the house with Z.S. Two of Lang’s other children sometimes lived in the house.
And those children grew up with—but did not always live with—Z.S.’s older sister
C.H., who mostly lived with her dad.1
1 Although she was not a charged victim, we refer to C.H. either by initials or as
“Z.S.’s sister” to protect her privacy. 3
In July 2022, then-seven-year-old Z.S. disclosed to then-twelve-year-old
C.H. that Lang was sexually abusing her. The core of Z.S.’s report was that Lang
put his private parts in her “butt area” and her mouth. C.H. recalled that Z.S.
“seemed scared” when she described the abuse, and C.H. told Z.S. she needed
to tell an adult. That same day, Z.S. told her dad and his girlfriend, who called the
police. When telling her dad what happened, Z.S. described abuse involving her
“mouth” and “private parts on private parts.”
Z.S. was forensically interviewed at the child protection center in Muscatine.
Z.S.’s dad testified that he and his girlfriend did not discuss the abuse with Z.S.
before they went to the interview or medical examination, and the district court
believed him—“find[ing] absolutely no support for an argument that [Z.S.’s father]
somehow ginned up or encouraged false allegations by [Z.S.].”
During the forensic interview, Z.S. described and demonstrated what she
meant by “private parts.” She said she had seen Lang’s private part and that “he
does really bad stuff to me.” She said Lang would take his clothes off, take her
clothes off, and put his private part in her mouth. She said this happened more
than once in multiple locations and that this and other abuse started when she was
around three years old. Z.S. described how Lang would use his private part to
“pee” on her private parts and in her mouth. She said he made her “suck on it”
and that sometimes he used “lotion something” on their private parts, which made
them “wet” and “go back and forth smoothly.”2 She said Lang’s private part was
“squishy,” the “pee” and private part tasted “nasty,” and he made her swallow
2 Police later found a bottle of lubricant in Lang’s bedroom, consistent with what
Z.S. described in the forensic interview. 4
“every time he put it in [her] mouth.” She also explained that Lang put his mouth
on the “front” and the “back” of her private parts. He “would like put his tongue and
keep going back and forth” and she could hear “licking” noises. And he would “try
to kiss” her.
As part of the interview, Z.S. circled anatomical locations where Lang would
“pee” or inappropriately touch her: the chest, back, mouth, vagina, and anus. She
said she wanted Lang to stop but he didn’t. She said the abuse happened “a lot
of times.” And she said “it hurt,” both during the acts and when she went to the
bathroom after—both when she went “poop” and “pee.”
In trial testimony, Z.S.—then nine years old, in third grade—identified who
she lived with, when, and where. According to the district court’s fact findings, she
“noticeably g[o]t quieter or stiffen[ed]” when she was questioned about Lang. She
did not know or use adult anatomical terms for her body. She said private part
“number one” was where her “pee” came out and private part “number two” was
where “poop” comes out. And she testified that Lang did something to both of her
private parts.
Z.S. testified that Lang would take off her clothes, take off his clothes, then
put her stomach-down on the bed with her feet on the ground. She described how
Lang would stand behind her, then his private part where “pee” comes out would
touch her private part that goes “poop.” This happened more than once. And she
testified that, also more than once, Lang would put his “entire body” on top of her
and his “private part that goes number one” (penis) would touch her private part
that goes number one (vagina). Using similar language, she described her hand 5
touching Lang’s penis, again more than once. When asked if her mouth touched
any part of his body, she said at trial: “Not really.”
Z.S. told the court she did not tell her mom about the abuse because she
was afraid Lang would hurt her mom. She explained that Lang was “mean,” and
she had seen Lang hurt her mom before by twisting her body parts and “trying to
choke[3] her.” Z.S.’s mom confirmed the domestic abuse and “toxic” relationship in
her testimony, describing instances of Lang “choking” her and multiple Department
of Health and Human Services (HHS) investigations. So did Z.S.’s dad and C.H.
Z.S.’s mom also testified that Lang spent time alone with Z.S. during the
approximately eight years Lang was in their lives.
Z.S.’s mom confronted Lang after she learned of the abuse, and he denied
it. Lang packed up his things and moved out, leaving the children notes that Z.S.’s
mother understood to be goodbye messages referring to his guilt and the
probability he would not see them again. He soon sent messages to Z.S.’s mother
alluding to his guilt and suggesting he might kill himself, and he created what
appeared to be a suicide cocktail. He told arresting officers that “his life was
crashing down” and he “was contemplating suicide” by poison. The district court
found it “notable” the messages and statements did not include denials of the
abuse.
3 We use the word “choke” and its derivations because those were the words used
by witnesses at trial. However, we note the correct terminology would be “strangled” given the witnesses’ description of the act. See Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & L. 1, 11 (2019) (on how language matters and noting that describing acts of strangulation as “choking” can minimize or mitigate the perpetrator’s actions). 6
An inmate who was formerly housed with Lang at the county jail testified
that Lang told him he was in jail for sexual assault charges, that Lang described
himself as a “piece of shit” who was “never going to see his kids again,” and that
Lang said he would be facing additional charges if police spoke to his other
children. Lang eventually gave the inmate more details about his victim, including
Z.S.’s name, that she was his girlfriend’s daughter, her age, and that the abuse
had been going on for more than three years. Lang told the inmate he started
abusing Z.S. to get back at Z.S.’s mother. And Lang eventually described specific
sex acts to the inmate, including that he masturbated with Z.S. on top of him,
performed “oral sex” and “penetration,” and that he set up cameras to record her
with the purpose of selling child pornography online. The details were so graphic
and specific the inmate started taking notes with the goal of sharing information
with law enforcement. Although the inmate entered into a cooperation agreement
with the county attorney, he ultimately was sentenced to prison on his pending
charges before trial. The district court credited the inmate’s testimony because the
inmate “had nothing to gain” and “[t]he court believed him when he stated he just
thought it was the right thing to do.” Police also independently corroborated some
of the inmate’s testimony with Lang’s jail calls, which the inmate overheard and
later described.
A pediatrician specializing in child abuse explained at trial that, although no
acute physical injuries were found during a medical examination of Z.S., this was
not inconsistent with Z.S.’s report of sexual abuse.
The defense called a different child protection center employee to testify
that Lang brought a different child to the center based on some sexual behaviors. 7
And HHS workers testified that Z.S. did not spontaneously disclose the abuse
when they were investigating the family for other reasons. Lang testified to conflict
between him and Z.S.’s mother, including his guilty pleas to domestically abusing
her and his uncharged allegation that she domestically abused him. He denied
sexually abusing Z.S., making admissions to the inmate, and that the goodbye
messages were an admission or confession of guilt. And he cast vague aspersions
on other men who might have been around Z.S. during the charged time period.
Lang admitted he was planning to attempt suicide when arrested and that he failed
to show up for a scheduled police interview. He agreed with his attorney that, in
watching the recorded forensic interview, Z.S. appeared to be describing things
that were outside the knowledge of a seven-year-old child. And he agreed with
the assistant county attorney that Z.S. “appeared to be describing things that she
actually experienced and felt with her body.” In Lang’s words, the forensic
interview was “shocking” and “nauseating.”
In resolving conflicting evidence and weighing Z.S.’s and other witnesses’
testimony against Lang’s denial, the district court—in a thirty-four-page written
verdict—credited Z.S. and the inmate’s testimony and did not believe Lang.
Specifically, the court made detailed credibility findings about Z.S. based on her
trial testimony and her forensic interview. The court found Z.S.’s forensic
“interview as a whole . . . very compelling and credible.” And the court found Z.S.’s
in-person testimony “very credible,” concluding she “did not at all appear to
exaggerate nor was there any questioning to indicate that [an] adult was putting
words in her mouth.” “The court was convinced [Z.S.] knew very well the difference
between a truth and a lie. The court was alert for any signs that her father, mother 8
or anyone else had put her up to telling stories and the court [found] there was no
indication of that.” In sum, the court was “of the very firm opinion” that Z.S.
described sexual abuse and “that sexual abuse in fact happened to this little girl.”
The court found Z.S.’s report of abuse “to be entirely credible” and discerned no
pressure or coercion affecting her testimony.
In weighing Lang’s testimony, “[t]he court did not find his denials remotely
convincing.” And the court expressly rejected defense theories that Z.S. was
coached, that Z.S. shouldn’t be trusted because she didn’t disclose earlier, that
Z.S. confused sexual abuse perpetrated by another offender with acts committed
by Lang, and that the lack of acute physical findings undermined Z.S.’s account.
The court also considered whether allegedly “inconsistent” statements by Z.S.
warranted acquittal, and the court noted it was “not surprised that her testimony in
an intimidating courtroom with a judge in a black robe might be somewhat different
than the details provided to a trained social service worker in a more comfortable
setting.”
The court found Lang guilty of three counts of sexual abuse in the second
degree, class “B” felonies in violation of Iowa Code section 709.3(1)(b) and (2)
(2022). And the court sentenced Lang to prison. He appeals, challenging only the
sufficiency of the evidence supporting his conviction.
II. Standard of Review
We review sufficiency-of-the-evidence claims for correction of errors at law.
See State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021). “In determining whether
the [factfinder]’s verdict is supported by substantial evidence, we view the evidence
in the light most favorable to the State, including all ‘legitimate inferences and 9
presumptions that may fairly and reasonably be deduced from the record
evidence.’” Id. (citation omitted). We do not require corroboration of victim
testimony, nor do we substitute our view of the evidence for that of the factfinder.
State v. Hernandez, 20 N.W.3d 502, 507–08 (Iowa Ct. App. 2025) (en banc).
III. Discussion
Lang frames the sole issue on appeal as: “Were [Z.S.]’s testimony and
statements self-contradictory and absurd to the point that they could not convince
a rational fact finder that Lang is guilty beyond a reasonable doubt?” The lynchpin
of his argument is State v. Smith, 508 N.W.2d 101, 103 (Iowa Ct. App. 1993). In
response, the State of Iowa urges “Smith should be overturned and left in the ash
heap of history: it permits defendants to perpetuate arguments that are both legally
unsound and unsupported by our modern understanding of sexual abuse victims.”
We consider first the vitality of Smith, then Lang’s sufficiency challenge.
A. Revisiting Smith
According to the State’s brief, “Smith has been widely panned” by our court
and the supreme court. We agree.
In recent years, the supreme court has described Smith as “an outlier case”
that “has been criticized in the commentary, and it has not been followed in any
sexual abuse case in Iowa since.” State v. Mathis, 971 N.W.2d 514, 518
(Iowa 2022). That court went on to opine that the “primary flaw” in Smith was a
misapplication of the standard of review when this court substituted its judgment
for the jury’s verdict rather than deferring to it by viewing the evidence in the light
most favorable to guilt. Id. In another decision, the supreme court repeated this
criticism, describing Smith as “inconsistent with our appellate standard[s].” State 10
v. Trane, 984 N.W.2d 429, 436–37 (Iowa 2023). And even in decisions that do not
overtly swing at Smith, the supreme court has employed language irreconcilable
with Smith’s holding. See, e.g., State v. Donahue, 957 N.W.2d 1, 11 (Iowa 2021)
(“[A defendant]’s argument that [the victim]’s testimony is not credible enough to
convince a rational fact finder of his guilt beyond a reasonable doubt is unavailing
for sufficiency of the evidence purposes.”).
The criticism from our court has come from a majority of active and senior
judges. We collected many of these cases in State v. Showers, No. 23-0390, 2024
WL 2317709, at *4–5 & n.4 (Iowa Ct. App. May 22, 2024). We observed:
Along with our supreme court’s directive over the ill-advised use of the Smith case, each decision departing from or declining to follow Smith is an implicit recognition of the incorrect reasoning employed in that decision. As our decisions over the last thirty years suggest, we have not returned to the flawed analysis found in Smith.
Showers, 2024 WL 2317709, at *5. And we highlight just a few observations from
our unpublished decisions that we think are representative of the fundamental
flaws we see in Smith:
• “In the more than thirty years since it was decided, Smith has become an anomaly in our case law . . . .” State v. Fairchild, No. 23-2090, 2024 WL 5153704, at *4 (Iowa Ct. App. Dec. 18, 2024). • “Smith draw[s] on archaic concepts about sexual abuse to support its decision, but it also glosse[s] over the gatekeeping concepts that must frame our analysis.” Showers, 2024 WL 2317709, at *5. • “[O]ur supreme court has flagged Smith as ‘an outlier case’ because it flouts the deferential appellate review of verdicts and the factfinder’s resolution of disputed factual issues.” State v. Duran-Sierra, No. 21-1312, 2023 WL 2148743, at *2 (Iowa Ct. App. Feb. 22, 2023) (citation omitted). • “[W]e view any reliance on the limited exception mentioned in . . . Smith to be shaky at best.” State v. Lopez Escoto, No. 24-0744, 2025 WL 2058047, at *2 (Iowa Ct. App. July 23, 2025). 11
Perhaps most telling on Smith’s vitality, we have now been asked to apply Smith
when reviewing convictions more than eighty times, and we have never applied
that case to reverse a conviction. See Showers, 2024 WL 2317709, at *5 n.4
(noting seventy-seven cases declining to follow Smith); see also State v. Davis,
No. 24-0837, 2025 WL 2803725, at *2 (Iowa Ct. App. Oct. 1, 2025); Lopez Escoto,
2025 WL 2058047, at *2; State v. Sahr, No. 23-1920, 2025 WL 2057913, at *2–3
(Iowa Ct. App. July 23, 2025); State v. Shogren, No. 23-2085, 2025 WL 1704077
at *5 & n.5 (Iowa Ct. App. June 18, 2025); State v. Brown, No. 23-2127, 2025 WL
1177589, at *4 (Iowa Ct. App. Apr. 23, 2025); State v. Fisher, No. 23-1140, 2025
WL 400511, at *2 (Iowa Ct. App. Feb. 5, 2025); Fairchild, 2024 WL 5153704, at *4.
Our court has questioned “whether Smith even remains a viable precedent.”
State v. Ross, No. 20-0914, 2022 WL 3440701, at *2 (Iowa Ct. App.
Aug. 17, 2022); accord Davis, 2025 WL 2803725, at *2 (“We doubt Smith is good
law.”). And a commentator recently observed: “The vitality of Smith and cases like
it is doubtful after State v. Trane, in which the [Iowa Supreme] Court noted that it
is within the discretion of the court to judge the credibility of witnesses.” 4A B. John
Burns, Iowa Practice Series: Criminal Procedure § 31:2 (2025 ed.) (internal
footnote omitted).
There is perhaps an argument that the supreme court has implicitly
overruled Smith and our court doesn’t need to take any further action. But in
practice, Smith is causing problems. Even after the supreme court heavily
criticized Smith in Mathis and Trane, criminal defendants continue to “insist[] it
remains controlling law in the absence of an opinion expressly overruling it.”
Fisher, 2025 WL 400511, at *2 (cleaned up); see also State v. Schondelmeyer, 12
No. 14-0621, 2015 WL 1817030, at *3 (Iowa Ct. App. Apr. 22, 2015) (noting the
defendant’s “claim relies heavily on this court’s decision in” Smith). And we have
to keep writing qualified statements like “[e]ven assuming Smith remains good
law.” E.g., State v. Veverka, No. 22-0255, 2023 WL 5949004, at *5 (Iowa Ct. App.
Sept. 13, 2023). So, we understand why the State keeps asking us to formally
overrule Smith rather than dodge the question.4 Ultimately, we think we should
clean up our own case law rather than letting time continue to erode Smith as a
never-followed and often-criticized decision. We highlight just a few reasons why
it’s time to formally bury Smith and clarify the law going forward.
First and most importantly, the “primary flaw” in Smith is a misapplication of
appellate standards of review. See Mathis, 971 N.W.2d at 518; Trane, 984 N.W.2d
at 436–37. “[W]e have never permitted appellate courts to masquerade as jurors.”
State v. Hagenow, No. 22-1958, 2024 WL 2042137, at *6 (Iowa Ct. App. May 8,
2024). And credibility questions are reserved for the factfinder, such that we do
not reverse criminal convictions because of disagreements over whether testimony
was believable. See Hernandez, 20 N.W.3d at 507–08. What this court did in
Smith cannot be reconciled with these fundamental principles of appellate review.
See Trane, 984 N.W.2d at 436–37.
Second, we think the analysis in Smith embraces stereotypes, myths, or
other false beliefs about sexual abuse—including an unreasonable expectation
that victims of sexual abuse will have perfect memory. “Inconsistencies and lack
4 Exemplar cases citing some of the State’s requests include Showers, 2024 WL 2317709, at *1; State v. Atkins, No. 20-0488, 2021 WL 3895198, at *3 n.4 (Iowa Ct. App. Sept. 1, 2021); and State v. Cardona, No. 19-1047, 2020 WL 1888770, at *2 n.1 (Iowa Ct. App. Apr. 15, 2020). 13
of detail are common in sexual abuse cases and do not compel a [factfinder] to
conclude that the victim is not credible or that there is insufficient evidence to
support a guilty verdict.” Donahue, 957 N.W.2d at 11. Particularly with minor
victims, “uncertainty or lack of detail from a child witness is no surprise.” State v.
Wilde, 987 N.W.2d 486, 495 (Iowa Ct. App. 2022). As our supreme court said
fifty-five years ago: “A person should not be able to escape punishment for such a
disgusting crime because he has chosen to take carnal knowledge of an infant too
young to testify clearly as to the time and details of such shocking activity.” State
v. Rankin, 181 N.W.2d 169, 172 (Iowa 1970). And as we observed more recently:
“We do not require victims of child sex abuse to recall every detail with perfect
clarity, and in fact, they rarely do.” Hagenow, 2024 WL 2042137, at *6. We
disapprove of Smith and any of its progeny that embrace myths or stereotypes
about sexual abuse dynamics.
Third, one plausible reading of Smith is that it was a thinly veiled attempt at
reviving the corroboration requirement. This is supported by the Smith majority’s
repeated recitations that the “the only evidence against appellant is the statements
and testimony of the three girls,” that there was no “physical evidence of abuse
found in a careful medical examination,” that there were no eyewitnesses “other
than the girls themselves,” and that “no one who was in the room at the time saw
or heard anything.” 508 N.W.2d at 103–05. Yet Iowa law abandoned the
corroboration requirement more than fifty years ago. Iowa Code § 782.4
(repealed 1974). And for good reason: “This requirement for corroborating
evidence ‘plays on long-held myths that rape victims—and women more
generally—cannot be trusted.’” State v. Barnhardt, No. 17-0496, 2018 14
WL 2230938, at *4 (Iowa Ct. App. May 16, 2018) (citation omitted). The lack of
corroboration for victim testimony is irrelevant to a sufficiency analysis, which
assumes the jury credited victim testimony absent corroboration. Id.; see also
State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995) (en banc) (“The law has
abandoned any notion that a rape victim’s accusation must be corroborated.”);
Iowa Code § 709.6 (2022); Iowa R. Crim. P. 2.21(3). And the law neither requires
nor expects evidence of physical injury or resistance. Cf. Iowa Code § 709.5
(“Under the provisions of this chapter it shall not be necessary to establish physical
resistance by a person in order to establish that an act of sexual abuse was
committed by force or against the will of the person.”). We cannot reconcile the
language in Smith with these principles of black-letter Iowa law. And we hold that
the Smith court’s decision to reverse convictions in part based on lack of
corroboration was clearly erroneous under the law then and now.5
Fourth, another plausible reading of Smith is that our court conflated a
weight-of-the-evidence challenge (which considers credibility and can result in a
new trial) with a sufficiency challenge (which does not consider credibility and can
5 We acknowledge some of our unpublished decisions point to corroborating evidence as a reason to distinguish Smith. See, e.g., State v. Mayes, No. 19-0252, 2020 WL 2060306, at *6 (Iowa Ct. App. Apr. 29, 2020) (“And, unlike in Smith, physical evidence corroborated [the victim]’s allegation.”); Schondelmeyer, 2015 WL 1817030, at *4 (rejecting sufficiency challenge in part because “[e]ach girl’s testimony corroborates the other’s”); State v. Wagner, No. 01-1232, 2002 WL 1758180, at *8 (Iowa Ct. App. July 31, 2002) (distinguishing Smith in part because the victim’s “testimony was sufficiently corroborated by other circumstantial and direct evidence in the record”). We recognize this kind of language may have perpetuated the implication that corroborating evidence is required, which is wrong as a matter of law. So we disavow this and similar language in our case law to the extent it suggests the testimony of a crime victim must or should be corroborated to support a conviction. 15
result in acquittal with double jeopardy barring retrial). See State v. Ellis, 578
N.W.2d 655, 657–59 (Iowa 1998) (on the difference between the two); Tibbs v.
Florida, 457 U.S. 31, 45 (1982) (explaining how weight-of-the-evidence review is
consistent with the Due Process Clause). Or, as the State says more colorfully in
its brief, Smith may be “a weight of the evidence case dressed in sufficiency
clothing.” We have acknowledged this possibility before. Shogren, 2025
WL 1704077, at *5 n.5. And we find this error also supports formally overruling
Smith, given the frequent “recurring issue of criminal appellants conflating motions
for new trial and motions for judgment of acquittal.” See State v. Moore,
No. 24-0341, 2025 WL 1704319, at *4 (Iowa Ct. App. June 18, 2025) (Buller, J.,
specially concurring). To the extent Smith has contributed to the confusion, we
add this to the list of reasons Smith should not linger on.
On the other side of the ledger, Lang contends “Smith is an important safety
valve” for cases where testimony is so unbelievable it is “nothing but a nullity.” And
he claims, “[t]he State’s criticism of Smith is exaggerated.” We disagree with both
premises. Taking the second first, we share most or all of the concerns about
Smith advanced by the State, as evidenced by the cases cited above from this
court and our supreme court. We do not think those opinions exaggerate the flaws
in Smith. As for the safety-valve argument, that is the function of a district court
deciding a motion for new trial—not a motion for judgment of acquittal. See State
v. Jones, No. 23-2013, 2025 WL 271942, at *3 (Iowa Ct. App. Jan. 23, 2025)
(“Rule 2.24(2)(b)(7) is a safety valve, allowing courts to grant a new trial to avoid
a miscarriage of justice when the evidence preponderates heavily against the
verdict.”); accord Ellis, 578 N.W.2d at 658–59. To the extent Lang insists Smith is 16
a “safety valve,” that too supports us disavowing Smith to clarify the safety valve
exists in the form of new-trial motions, not sufficiency review.
As a final observation, we note our analysis and ultimate conclusion here
do not displace existing supreme court precedent deriving from Graham v. Chicago
& Northwestern Railway Co., 119 N.W. 708, 711 (Iowa 1909), in which a witness
gave blatantly contradictory testimony at two separate trials. It is not within our
power to overrule Graham even if we wanted to, though we recognize a fair
application of cases like Hernandez, Mathis, and Trane may exclude application
of Graham in circumstances other than retrial. But that case’s modern vitality is
for a different court to decide another day.
In short, Smith has long overstayed its welcome as controlling precedent.
It was wrong when it was decided, and it is wrong now. It has never been followed,
and it is irreconcilable with our standards of review as a court for correction of
errors at law. Despite this, its problematic holding has persisted in briefing,
requiring us to distance ourselves from the decision again and again. We therefore
expressly overrule Smith and disavow its reasoning for the reasons set forth in this
opinion.
B. Sufficiency of the Evidence
Having overruled Smith, we are left with a routine challenge to the
sufficiency of the evidence. The core of Lang’s complaint is that the factfinder
shouldn’t have believed Z.S. absent corroboration. “The argument we should
reverse because there was no corroborating evidence is a non-starter.”
Hernandez, 20 N.W.3d at 507. So too for Lang’s complaint that the court should
have believed his denial rather than Z.S.’s account of the abuse (in testimony and 17
the interview) or the inmate’s recitation of his confession. See id. at 507–08 (“A
criminal defendant is not entitled to acquittal merely because he wishes the jury
had believed him instead of the victim.”). We decline to substitute our judgment
for that of the district court, and we defer to that court’s detailed and explicit
credibility findings.
In the interest of completeness, and to respond directly to some of Lang’s
appellate contentions, we observe we would affirm even without the detailed
credibility findings made by the district court. We watched Z.S.’s forensic interview
and find it compelling—as Lang admitted in his trial testimony. The interview is
replete with details beyond the ordinary understanding of a child. And Z.S.’s
description of the abuse includes vivid sensory details. The forensic interview was
more detailed than Z.S.’s trial testimony, and we tend to agree with the district
court’s suggested theory why—the courtroom is a scary place for many adults, let
alone children, and it is no surprise that a child victim would be more forthcoming
in a comfortable room with a trained forensic interviewer than in a sterile,
intimidating courtroom filled with lawyers and a judge.6 And although corroborating
evidence was not required, we observe Z.S.’s testimony was strongly supported
6 In addition to the district court’s comments we quoted earlier in this opinion, it
observed in ruling on the admissibility of the forensic interview that it was not surprised the recording detailed “far more extensive [sex] acts, different types of acts, different levels of specificity of the acts” than Z.S.’s in-court testimony. The court noted: When you think about it, that type of testimony is simply not available in court. The courts don’t have time to have a child sit with markers and pens and papers and playing with Play-Doh and making the child feel comfortable and allowing all this detail to come out over a lengthy interview. Courts are not set up for that. This interview— this interview was. We agree and think this point well-said. 18
by the confession made to the inmate, as well as Lang’s post-disclosure conduct
that tended to suggest consciousness of guilt. See State v. Nance, 533 N.W.2d
557, 562 (Iowa 1995) (“Admissions may be implied by the conduct of the defendant
subsequent to a crime when such conduct indicates a consciousness of guilt.”).
Given the materially consistent disclosures Z.S. made to her sister, her dad,
her dad’s girlfriend, the forensic interviewer, and the court, as well as the
supporting evidence from the inmate and Lang’s admissions and conduct, we
reject Lang’s contention that Z.S.’s testimony should be rendered a “nullity.” We
conclude Lang’s conviction was supported by substantial, if not overwhelming,
evidence.
IV. Disposition
We expressly overrule Smith, 508 N.W.2d at 102, finding this court
misapplied the standards of appellate review and that we cannot permit that
decision to shamble on in our case law. And we affirm Lang’s convictions as
supported by substantial if not overwhelming evidence.
AFFIRMED.
Greer, Chicchelly, and Langholz, JJ., concur; Sandy, J., specially concurs;
Tabor, C.J., specially concurs with Schumacher, Ahlers, and Badding, JJ., joining. 19
SANDY, Judge (specially concurring).
I write separately because I believe the majority analysis should start and
end with the following:
[T]he “primary flaw” in Smith[, 508 N.W.2d 101 (Iowa Ct. App. 1993)] is a misapplication of appellate standards of review. See[ State v.] Mathis, 971 N.W.2d [514,] 518[ (Iowa 2022)]; [State v. ]Trane, 984 N.W.2d [429,] 436–37[ (Iowa 2023)]. “[W]e have never permitted appellate courts to masquerade as jurors.” State v. Hagenow, No. 22-1958, 2024 WL 2042137, at *6 (Iowa Ct. App. May 8, 2024). And credibility questions are reserved for the factfinder, such that we do not reverse criminal convictions because of disagreements over whether testimony was believable. See [State v. ]Hernandez, 20 N.W.3d [502,] 507–08[ (Iowa 2025)]. What this court did in Smith cannot be reconciled with these fundamental principles of appellate review. See Trane, 984 N.W.2d at 436–37.
Judicial minimalism is the judicial philosophy that judges should take the narrowest
possible action necessary to resolve a specific dispute, rather than issuing broad,
sweeping decisions that create unintended consequences. See Cass R. Sunstein,
One Case at a Time: Judicial Minimalism on the Supreme Court 3–4 (1999). I
agree that Smith should be overruled simply for the reason stated above. 20
TABOR, C.J. (specially concurring).
I agree with the result reached by the main decision because the testimony
of Z.S. provided substantial evidence to support the district court’s findings of fact
and conclusions of law.
But I disagree with the extra step of overruling a three-decades-old outlier
case. Overruling State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993), is
unnecessary to resolve Lang’s appeal. And doing so undermines the due-process
review required by Jackson v. Virginia, 443 U.S. 307, 316 (1979) (confirming an
essential element of due process is “that no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof—defined as evidence
necessary to convince a trier of fact beyond a reasonable doubt of the existence
of every element of the offense”). Honoring the principle of judicial restraint, I
would reject the State’s request to overrule Smith, as our court has done before.
See State v. Showers, No. 23-0390, 2024 WL 2317709, at *1 (Iowa Ct. App.
May 22, 2024).
To be clear, I agree that Smith misapplied the standard and lacked our
modern understanding about child sex abuse victims. See, e.g., State v. Donahue,
957 N.W.2d 1, 11 (Iowa 2021) (“Inconsistencies and lack of detail are common in
sexual abuse cases and do not compel a jury to conclude that the victim is not
credible or that there is insufficient evidence to support a guilty verdict.”).
Yet my concern with overruling Smith is two-fold. First, it’s not clear what
we’re overruling. Smith properly recognized that as a rule, “it is for the jury to
determine the credibility of witnesses,” but applied an “exception” that “[t]he 21
supreme court established” in its precedents. 508 N.W.2d at 102–03. As far as I
can tell, Smith doesn’t announce a new rule.
Which brings me to my second concern. Are we overstepping our bounds
in overruling Smith? True, we can overrule our own cases. See, e.g., In re
Marriage of Campbell, 623 N.W.2d 585, 588 (Iowa Ct. App. 2001). But so can the
supreme court. See, e.g., State v. Kooima, 833 N.W.2d 202, 210 (Iowa 2013).
And when the State recently asked our supreme court to overrule Smith, the court
declined—instead describing it as “an outlier case” and distinguishing its factual
analysis. State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022) (“[U]nlike Smith, there
are no fatal contradictions or deficiencies in either B.T.’s or L.S.’s testimony.”).
Thus, Mathis signals that in the rare case where an appellate court did find
“fatal contradictions or deficiencies” in a witness’s testimony, it could afford the
defendant relief. Id. That reading of Mathis tracks with the observation that Iowa
follows an “inherent improbability” standard for evaluating witness credibility. See
State v. Robbins, 210 P.3d 288, 293−94 (Utah 2009) (listing Iowa among
jurisdictions that have adopted that standard and announcing that “[t]o prevent
unappealable injustice, we hold that the definition of inherently improbable must
include circumstances where a witness’s testimony is incredibly dubious and, as
such, apparently false”).
So, does overruling Smith abandon the “inherent improbability” standard as
a narrow exception to the rule that appellate courts leave credibility determinations
to the factfinder? Assuming it does, is that standard ours to abandon or should
such a significant change be reserved for our supreme court? After all, the bedrock
cases in Smith are supreme court precedents. See Graham v. Chicago & Nw. Ry. 22
Co., 119 N.W. 708, 711 (Iowa 1909) (“This court has gone its full length to protect
the right of jury trial against encroachment by the courts under any guise, and one
of the rights of jury trial is the right to have the credibility of the witness determined
by the jury. Generally speaking there are no limitations upon this rule, but there
are limitations upon the application of it. The testimony of a witness may be so
impossible and absurd and self-contradictory that it should be deemed a nullity by
the court.”); State ex rel. Mochnick v. Andrioli, 249 N.W. 379, 380 (Iowa 1933)
(“The rule that it is for the jury to reconcile the conflicting testimony of a witness
does not apply where the only evidence in support of a controlling fact is that of a
witness who so contradicts himself as to render finding of facts thereon a mere
guess.”). These lingering questions underscore the trouble with overruling Smith.
Beyond those questions, in my view, the main decision too readily discounts
Lang’s perspective that Smith serves as “a safety valve” available to prevent a
miscarriage of justice in rare cases “where a fact-finder convicts on something
other than substantial evidence.”7 Indeed, many jurisdictions recognize such a
safety valve in sufficiency challenges. See, e.g., Hillman v. State, 569 S.W.3d 372,
375–76 (Ark. Ct. App. 2019) (“The victim’s testimony, if believed by the trier of fact,
is sufficient to establish appellant’s guilt. Any inconsistencies in the victim’s
7 The main decision suggests that Lang’s safety valve would be to challenge the
denial of a motion for new trial on weight-of-the-evidence grounds rather than this sufficiency-of-the-evidence review. See State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). But the possibility of a new-trial challenge does not mean sufficiency review is unavailable where evidence is incredible as a matter of law. See generally United States v. Larsen, 427 F.3d 1091, 1094 (8th Cir. 2005) (“Testimony can indeed be incredible as a matter of law . . . .” (internal citation omitted)); United States v. Truman, 688 F.3d 129, 139 (2d Cir. 2012) (explaining that motion for judgment of acquittal may be proper challenge if testimony is “incredible on its face” or “def[ies] physical realities” (citations omitted)). 23
account of what happened are for the fact-finder to resolve, not our court on
appeal. We will disregard testimony that the fact-finder has found credible only if
it is so inherently improbable, physically impossible, or so clearly unbelievable that
reasonable minds could not differ about it.” (internal citations omitted)); People v.
Young, 105 P.3d 487, 505 (Cal. 2005) (“In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor evidentiary conflicts.
Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to
support a conviction.” (internal citations omitted)); People v. Dash, 104 P.3d 286,
289 (Colo. App. 2004) (“[T]he fact finder, not an appellate court, determines the
credibility of witnesses, and only when testimony is so palpably incredible and so
totally unbelievable may we reject it as a matter of law. Testimony is incredible as
a matter of law when a witness describes events she could not possibly have seen
or that are not possible under the laws of nature.” (internal quotation marks and
citation omitted)); R.W. v. United States, 958 A.2d 259, 264 (D.C. 2008) (“Although
the determination of credibility is for the finder of fact, and is entitled to substantial
deference, the one exception to this general rule is if the testimony of a witness is
inherently incredible under the circumstances.” (cleaned up)); Patton v. State, 43
S.E. 533, 534 (Ga. 1903) (“In testing the sufficiency of evidence this court cannot
consider the credibility of the witness; that being a matter exclusively for the jury,
who note their manner of testifying, and consider the thousand and one things
transpiring during a trial, and which cannot be photographed or transcribed and
transmitted to this court as a part of the record. But while it cannot consider the 24
credibility of a witness, it must consider the nature and character of his testimony—
whether it is in accord with natural laws, or is improbable, incredible, or seeks to
establish facts which are impossible, or which, if not impossible, must, in their very
nature, be uncertain, vague, indefinite, and insufficient to remove reasonable
doubts.”); Toles v. State, 151 N.E.3d 805, 808 (Ind. Ct. App. 2020) (“We do not
judge witness credibility. There is only one exception to this rule: the incredible-
dubiosity doctrine, under which we can impinge upon a factfinder’s responsibility
to judge the credibility of the witnesses when the testimony is so incredibly dubious
or inherently improbable that no reasonable person could believe it.” (internal
quotation marks and citation omitted)); State v. Hamdan, 131 So. 3d 197, 204 (La.
Ct. App. 2013) (“In our review, we are highly deferential to the trier of fact. Thus,
we assume that the jury can accept as true the testimony alone of any witness,
even a single witness. We will only tread on a jury’s presumed acceptance of a
witness’ testimony when the testimony is implausible or clearly contrary to
documentary evidence.” (internal citations omitted)); People v. Delamota, 960
N.E.2d 383, 387 (N.Y. 2011) (recognizing that the appellate court can reverse
convictions “in rare cases where the charged crime is established by only one
witness who provides inherently contradictory testimony at trial”); State v. Hornsby,
858 S.W.2d 892, 894 (Tenn. 1993) (“The so-called physical facts rule is the
accepted proposition that in cases where the testimony of a witness is entirely
irreconcilable with the physical evidence, the testimony can be disregarded.”
(internal quotation marks and citation omitted)); State v. Dever, 508 P.3d 158, 165
(Utah Ct. App. 2022) (“Appellate courts are not normally in the business of
reassessing or reweighing evidence, and conflicts in the evidence are typically 25
resolved in favor of the jury verdict. However, because a conviction not based on
substantial reliable evidence cannot stand, our supreme court has carved out a
narrow exception to this general rule, under which a court may disregard witness
testimony as inherently improbable when determining if sufficient evidence exists
to sustain a conviction.” (internal quotation marks and citation omitted)); State v.
Schmidt, 884 N.W.2d 510, 516 (Wis. Ct. App. 2016) (“This court will only substitute
its judgment for that of the trier of fact when the fact finder relied upon evidence
that was inherently or patently incredible—that kind of evidence which conflicts
with the laws of nature or with fully-established or conceded facts.” (internal
quotation marks and citation omitted)).
As all these jurisdictions envision, only the extremely rare case would fall
into the exception. So deference to the factfinder will continue to dominate our
sufficiency reviews, as it has in the decades since Smith.
To sum up, I would affirm because substantial evidence supports the verdict
and Smith can be easily distinguished. But I would leave Smith intact. Whether
to overturn Smith or to disavow the precedents that underlie it is the prerogative of
the supreme court.